Comments on: Google Book Search and Transactions Costs http://madisonian.net/2006/01/13/google-book-search-and-transactions-costs/ a blog about law, tech, culture, and related things Sat, 11 Feb 2012 02:59:42 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: madisonian.net » transaction costs and fair use http://madisonian.net/2006/01/13/google-book-search-and-transactions-costs/comment-page-1/#comment-20908 madisonian.net » transaction costs and fair use Wed, 18 Jan 2006 13:19:38 +0000 http://madisonian.net/?p=504#comment-20908 [...] As Mike noted in an earlier post, Larry Lessig’s Google Print presentation has sparked some interesting conversation about fair use and the transaction cost explanation for some of the uses that copyright law deems fair. The explanation is rather simple - when transaction costs are prohibitive, an efficient deal will not be struck and uses that should happen, don’t happen. So fair use sidesteps dealmaking altogether and leaves the public free to engage in the uses without transacting with the copyright owner. I think it is important to make clear that the transaction cost explanation only captures a portion of the fair use space and does not, and should not, fully define fair use. (Many people have made this point before, but it seems worth reiterating.) [...] [...] As Mike noted in an earlier post, Larry Lessig’s Google Print presentation has sparked some interesting conversation about fair use and the transaction cost explanation for some of the uses that copyright law deems fair. The explanation is rather simple – when transaction costs are prohibitive, an efficient deal will not be struck and uses that should happen, don’t happen. So fair use sidesteps dealmaking altogether and leaves the public free to engage in the uses without transacting with the copyright owner. I think it is important to make clear that the transaction cost explanation only captures a portion of the fair use space and does not, and should not, fully define fair use. (Many people have made this point before, but it seems worth reiterating.) [...]

]]> By: Mike Madison http://madisonian.net/2006/01/13/google-book-search-and-transactions-costs/comment-page-1/#comment-20886 Mike Madison Sat, 14 Jan 2006 15:49:17 +0000 http://madisonian.net/?p=504#comment-20886 I've edited the update slightly to add the distinction between two arguments. What happens if a copyright holder objects to snippets? One possibility is that Google argues that fair use applies to snippets of copyrighted works so long as the copyright holder is silent, but Google is willing to withdraw snippets upon objection and to post them, or any excerpts, only via negotiated agreement with the copyright holder. A second possibility is that Google argues that fair use applies to snippets even if the copyright holder objects, but Google is willing to negotiate with the copyright holder (and perhaps compensate the copyright holder?) if the copyright holder wants to enable more than mere snippets. I’ve edited the update slightly to add the distinction between two arguments. What happens if a copyright holder objects to snippets? One possibility is that Google argues that fair use applies to snippets of copyrighted works so long as the copyright holder is silent, but Google is willing to withdraw snippets upon objection and to post them, or any excerpts, only via negotiated agreement with the copyright holder. A second possibility is that Google argues that fair use applies to snippets even if the copyright holder objects, but Google is willing to negotiate with the copyright holder (and perhaps compensate the copyright holder?) if the copyright holder wants to enable more than mere snippets.

]]> By: Doug Lichtman http://madisonian.net/2006/01/13/google-book-search-and-transactions-costs/comment-page-1/#comment-20882 Doug Lichtman Sat, 14 Jan 2006 04:22:45 +0000 http://madisonian.net/?p=504#comment-20882 Mike - I think we have our signals crossed. I'll email you on the side and then hopefully you can come back and correct this? Basically, my original point to you was different: in the event of *silence* from a publisher, Google asserts that it can publish snippets. That is not "negotiation" as Larry and Randy and you describe it. That is instead a claim by Google that it is "fair use" to take snippets of copyrighted work without permission. In short, change "even over publishers' objections" to "even over copyright owner silence" and you have the basic point right. (Of course, that makes the "negotiations" sentence that follows almost non-sensical, since these are not "negotiations" in any sense of that word.) Hope that helps. Sorry for the confusion. ps. Standard disclaimer applies: I am involved in this dispute, but my comments here in no way reflect anyone's opinion but my own. Mike -

I think we have our signals crossed. I’ll email you on the side and then hopefully you can come back and correct this? Basically, my original point to you was different: in the event of *silence* from a publisher, Google asserts that it can publish snippets. That is not “negotiation” as Larry and Randy and you describe it. That is instead a claim by Google that it is “fair use” to take snippets of copyrighted work without permission.

In short, change “even over publishers’ objections” to “even over copyright owner silence” and you have the basic point right. (Of course, that makes the “negotiations” sentence that follows almost non-sensical, since these are not “negotiations” in any sense of that word.)

Hope that helps. Sorry for the confusion.

ps. Standard disclaimer applies: I am involved in this dispute, but my comments here in no way reflect anyone’s opinion but my own.

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